Judge Daniel M. Crowley, Case Number: 24STCV23725, Date: 2025-02-20 Tentative Ruling

Defendants’ demurrer to the Plaintiff’s FAC is overruled as to the 4th cause of action. Defendants’ demurrer is sustained with 20 days leave to amend as to the 2nd, 3rd, and 5th through 11th causes of action.

Defendants’ motion to strike portions of the FAC is GRANTED as to the allegations of punitive damages and emotional distress damages. Defendants’ motion to strike is DENIED as to the allegations pertaining to Mr. Mister being a service dog, AVMA standards and policies of the Veterinary Medical Board, Plaintiff hiring an independent contractor, and past neglect of VCA. Defendants motion to strike is otherwise MOOT in light of the demurrer ruling.

Defendants VCA Animal Hospitals, Inc. dba VCA Animal Specialty Group (“VCA ASG”), Samantha Lombardo (“Lombardo”), BVetMed (“BVet”), Mickila Collins, DVM (“Collins”), and Vaneh Allahverdi, DVM (“Allahverdi”) (collectively, “Defendants”) demur to the second through eleventh causes of action in the first amended complaint (“FAC”) of Plaintiffs Suzanne Obrien (“Obrien” or “Plaintiff”) on the basis the FAC fails to state facts sufficient to constitute a cause of action against Defendants.

Plaintiff filed her complaint on September 13, 2024. Plaintiff filed the operative FAC on October 29, 2024, against Defendants alleging eleven causes of action: (1) Negligence (Veterinary Malpractice), (2) Trespass to Chattel, (3) Breach of Bailment, (4) Breach of Contract, (5) Intentional Infliction of Emotional Distress, (6) Intentional Misrepresentation, (7) Fraudulent Concealment, (8) Violation of Lizzie’s Law, (9) Violation of Cal. Civ. Code § 1750 et seq. (Consumer Legal Remedies Act), (10) Violation of Bus. & Prof. Code § 17500 et seq. (FAL), and (11) Violation of Bus. & Prof. Code § 17200 et seq. (UCL).

Defendants filed their demurrer and accompanying motion to strike on December 3, 2024. Plaintiff filed her oppositions on February 5, 2025. Defendants filed their replies on February 11, 2025.

Plaintiffs allege that on 9/14/2023, Plaintiffs’ dog (“Mr. Mister”) was brought to VCA ASG for a routine checkup. (FAC, ¶11.) After his bloodwork revealed abnormal findings, it was decided that Mr. Mister would need to be admitted to the care of VCA ASG and undergo treatment. (Ibid.) Plaintiff chose to move forward with Mr. Mister receiving care at VCA ASG given specific representations on the hospital’s website regarding the expertise of the hospital and specific staff members, and he was then hospitalized from 9/16/2023 to 9/20/2023. (Ibid.) On admission, VCA ASG took a urine culture but mislabeled it, so the test was never performed. (FAC, ¶12.) During Mr. Mister’s stay, he suffered complications with his breathing that required him to be placed on oxygen. (FAC, ¶19.) On one of her visits, Plaintiff observed Mr. Mister wearing an e-collar, colloquially known as a “cone,” that was so tight Plaintiff was unable to fit her pinky finger under the tie, causing the cone to restrict Mr. Mister’s breathing. (FAC, ¶19.) Mr. Mister’s medications regimen from prior to his stay at VCA ASG was not maintained while he was under their care. (FAC, ¶20.) Plaintiff contends additional issues with the care received include: failure to administer medications pursuant to the standard of care; Lombardo not accurately depicting client communications or patient condition; Lombardo not completing medical records in a timely fashion; discrepancies in medical documentation; inadequate supervision of Lombardo by Collins; misrepresentation of Mr. Mister’s medical condition by Allahverdi; medical records being withheld from Plaintiff; breach of the Veterinary Medical Board’s policy and California law that veterinarians must minimize suffering of an animal that they are treating; breach of Lizzie’s Law; and breach of the Veterinary Medical Board’s policy and California law concerning a client’s right to obtain full medical records. (FAC, ¶¶20-21.)

Thereafter, in January 2024, MR. MISTER was hospitalized at ACCESS Pasadena. (FAC, ¶22.) While at this facility, radiographs were taken which depicted multiple healed, broken ribs on his right side. (Ibid.) This had never been seen on radiographs in the past, including those done on admission to VCA ASG a few months before. (Ibid.) Plaintiff suspects that these broken ribs are the result of trauma incurred during his September hospitalization, as there is no other explanation for his broken ribs. (Ibid.)

Mr. Mister was Plaintiff’s psychiatric service dog for PTSD and emotional support animal. (FAC, ¶24.) After his hospitalization at VCA ASG, Mr. Mister was never able to act as her service dog again. (FAC, ¶24.) Mr. Mister’s condition worsened, and he passed away on 4/22/2024. (FAC, ¶23.)

Additionally, Plaintiff alleges the following misrepresentations by VCA ASG: Defendant advertises 24-monitoring of all companion animals in their care while offering the “most advanced” care. This cannot be true. For one, if Mr. Mister were monitored 24/7 by well-trained staff—which explicitly included 24-hour pulse and oxygen saturation monitoring—they would have noticed that something was seriously wrong with Mr. Mister and that he was struggling to breathe. Further, VCA represents their clinic as having a “dedicated team of board certified, residency-trained specialists,” though the doctor primarily tasked with Mr. Mister’s care, Lombardo, was a mere intern. There was no mention of interns and their employment on the VCA website, nor in the clinic. It was not told to Plaintiff that Lombardo was an intern rather than a specialist. Had this been brought to Plaintiff’s attention, she would have sought care elsewhere. (FAC, ¶¶30-32.) Plaintiff was informed that Mr. Mister’s care was to be provided by the Internal Medicine department and Lombardo, who was represented to be an expert/specialist in internal medicine. (FAC, ¶13.) Had Plaintiff known that Lombardo was an intern in a training program, she would not have allowed her to treat Mr. Mister. (Ibid.) It was not disclosed on the VCA website or in the office that interns would be involved in care. (Ibid.) Plaintiff believed, based on the representations by VCA ASG, that Collins was available and continuously and actively involved in Mr. Mister’s care. (FAC, ¶14.) Yet, Lombardo indicated she was not able to reach Collins and receive direction or permission to properly treat Mr. Mister, and Plaintiff was never allowed to meet Collins to discuss Mr. Mister’s care. (FAC, ¶¶15-16.)

Defendants demur to the FAC on the basis the second through eleventh causes of action fail to state facts sufficient to constitute a cause of action. (Notice of Demurrer; C.C.P. §430.10(e).)

“[T]respass to chattels ‘lies where an intentional interference with the possession of personal property has proximately caused injury.’” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350-51 (quoting Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566).) “A trespass to a chattel may be committed by intentionally dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another.” (Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1401.)

Plaintiff contends Defendants interfered with her possession of personal property by not allowing her to visit Mr. Mister, refusing to allow her to speak with Collins, refusing to follow Mr. Mister’s medication regimen, and intentionally fitting Mr. Mister’s cone on him improperly. (FAC, ¶54.) It is unclear from the allegations how these interferences proximately caused any injury such as Mr. Mister’s death many months later or any other specific injuries.

Accordingly, the demurrer to the second cause of action is SUSTAINED with leave to amend.

A “bailment is the delivery of a thing to another for some special object or purpose, on a contract, express or implied, to conform to the objects or purposes of the delivery.” (Gebert v. Yank (1985) 172 Cal. App. 3d 544, 550 (citations and internal quotation marks omitted).) A bailment for hire is a bailment for the benefit of both parties in which the bailee has the duty to use ordinary care. (Id., at 551.) “Breach of the bailment contract may be asserted by the bailor when there is a failure to return that which was bailed.” (Ibid.) A bailee is only responsible for the property if the failure to redeliver is caused by his negligence. (Ibid.)

Defendants argue that there are insufficient factual, as opposed to conclusory, allegations that Mr. Mister was not returned to Plaintiff in the same manner as he was brought to Defendants. Plaintiff’s allegations that four months later radiographs showed healed broken ribs and that the broken ribs were caused by Defendants is conclusory. The Court agrees. While a cause of action for breach of bailment may exist in this context, the allegations of the injuries and state in which Mr. Mister was returned are very speculative. For example, Plaintiff alleges that Mr. Mister did not have broken ribs in the radiographs done by VCA ASG, but radiographs taken months later at another hospital showed healed broken ribs, and so Plaintiff suspects these broken ribs are the result of trauma incurred during his VCA ASG hospitalization. (FAC, ¶22.) The allegations at this time are insufficient.

Accordingly, the demurrer to the third cause of action is SUSTAINED with leave to amend.

The elements of a breach of oral contract claim are a contract, its performance or excuse for nonperformance, breach, and damages. (Stockton Mortg., Inc. v. Tope (2014) 233 Cal. App. 4th 437, 453 (citation omitted).)

Defendants argue that Plaintiff fails to allege the specific terms of the contract. The Court disagrees and finds the contract is alleged sufficiently at this pleading stage. Specifically, Plaintiff alleges that “Plaintiff and Defendants entered into a valid contract whereby Plaintiff agreed to pay for all amounts charged related to the care and treatment of MR. MISTER. In exchange, Defendants expressly or implicitly promised to do no harm and exercise due diligence in the performance of the services and the care of MR. MISTER while he was in their custody. Defendants agreed, in exchange for monetary compensation, to diagnose, treat, and hospitalize MR. MISTER. That care was to be provided by an Internal Medicine Specialist.” (FAC, ¶68.)

The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct (2) directed to the plaintiff by defendant, (3) with the intention of (4) causing, or reckless disregard of the probability of causing, (5) severe or extreme emotional distress. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) For conduct to be outrageous it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (See Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 130.) Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” (Ibid.)

The Court finds that Plaintiff has not sufficiently alleged extreme and outrageous conduct. (See FAC, ¶¶78-79.) As discussed above, the allegations regarding Mr. Mister’s broken ribs are speculative. Further, the allegation regarding Lombardo’s Facebook picture of an unidentified unconscious dog dos not rise to the level of extreme and outrageous conduct.

Accordingly, the demurrer to the fifth cause of action is SUSTAINED with leave to amend.

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

Defendants argue, and the Court agrees, that Plaintiff has not pled fraud with the requisite specificity such as how, when, where, to whom, and by what means the misrepresentations alleged were tendered. (See FAC, ¶¶86-90.)

Accordingly, the demurrer to the sixth cause of action is SUSTAINED with leave to amend.

“The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 131.) Fraud by concealment requires allegations demonstrating the defendant was under a legal duty to disclose the allegedly omitted or concealed facts. (See Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 831.) A duty to disclose arises when: (1) there is a fiduciary relationship between the parties; (2) the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) the defendant actively conceals a material fact from the plaintiff; and (4) the defendant makes partial representations but also suppresses some material facts. (See ibid.)

Plaintiff alleges that Defendants concealed Lombardo’s status as a veterinarian and ability to render treatment, the true nature of what happened to Mr. Mister such as the injury to his ribs, and Mr. Mister’s need for oxygen during treatment. As Defendant points out, Plaintiff also alleges that Lombardo was a veterinarian, albeit entry level. (FAC, ¶14.) Thus, this allegation is contradictory. Further, as discussed above, the injury to Mr. Mister’s ribs is speculative. Lastly, the it is unclear from the allegations how any of these alleged concealed facts resulted in any specific damages.

Accordingly, the demurrer to the seventh cause of action is SUSTAINED with leave to amend.

(a) Each time a veterinarian initially prescribes, dispenses, or furnishes a dangerous drug, as defined in Section 4022, to an animal patient in an outpatient setting, the veterinarian shall offer to provide, verbally, in writing, or by email to the client, a consultation that includes the following information:

(2) Route of administration, dosage form, dosage, duration of drug therapy, the duration of the effects of the drug, and the common severe adverse effects associated with the use of a short-acting or long-acting drug.

(5) If available, precautions and relevant warnings provided by the drug’s manufacturer, including common severe adverse effects of the drug.

(b) If requested, a veterinarian shall provide drug documentation, if available.

Defendants argue that Plaintiff fails to allege that the drugs were prescribed for the first time, and what necessary information was not provided. While the general allegation that the necessary information was not provided in direct violation of this provision is sufficient, Plaintiff does not allege that this was the veterinarian’s initial prescription of the drugs to Mr. Mister such that Lizzie’s law applies.

Accordingly, the demurrer to the eighth cause of action is SUSTAINED with leave to amend.

Violation of California Civil Code § 1750 et seq. (Consumer Legal Remedies Act) (9th COA)

The Court of Appeals has held that “causes of action under the CLRA and UCL must be stated with reasonable particularity, which is a more lenient pleading standard than is applied to common law fraud claims.” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261.) The elements of the cause of action are (1) a misrepresentation; and (2) reliance on the misrepresentation. (Cohen v. DIRECTV, Inc. (2009) 178 Cal. App. 4th 966, 980.) Additionally, the pleading must identify the particular section of the statutory scheme that was violated with reasonably particular facts supporting the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.)

Other than the representation regarding pulse ox measurements, the other excerpts of representations on VCA’s website appear to be general statements of puffery such as “the most advanced care” and not actionable. Further, the failure to mention interns working for a company is not a misleading misrepresentation. The FAC does allege that Dr. Collins was the supervising care giver who is a specialists. As to the pulse ox measurements, Plaintiff alleges the following: “Representing that VCA provides pulse ox measurements as part of 24-hour monitoring, when VCA ASG did not record any pulse ox measurements for MR.MISTER at intake, or on Sunday, September 17 when MR. MISTER demonstrated labored breathing.” (FAC, ¶113.) However, Plaintiff does not allege that VCA ASG never provided pulse ox measurements, only that they did not at intake or when Mr. Mister demonstrated labored breathing.

Bus. & Prof. Code section 17500 provides that it is “unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state, or to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent to sell the personal property or those services professional or otherwise,…as so advertised…”

As stated above under Plaintiff’s CLRA claim, Plaintiff’s allegations regarding VCA’s website fails to show the representations are misleading.

Accordingly, the demurrer to the tenth cause of action is SUSTAINED with leave to amend.

As this is a derivative cause of action based on violations which have been sustained within this demurrer, this cause of action fails.

Accordingly, the demurrer to the eleventh cause of action is SUSTAINED with leave to amend.

Defendants’ demurrer is sustained with 20 days leave to amend as to the 2nd, 3rd, and 5th through 11th causes of action.

Defendants’ demurrer to the Plaintiffs’ FAC is overruled as to the 4th cause of action.

In light of the Court’s ruling on Defendants’ demurrer, the only remaining causes of action at this moment are the claims for negligence and breach of contract. As such, the motion to strike is MOOT as to allegations pertaining to all other causes of action.

Plaintiff claims she may move for punitive damages pursuant to Civil Code §§ 3340 and 1780(a). The Court does not find the allegations in the remaining causes of action rise to the level of conduct required for punitive damages. As discussed above, the physical injuries to Mr. Mister are speculative as alleged.

Accordingly, the motion to strike punitive damages is GRANTED with leave to amend.

With regard to the remaining causes of action, Plaintiff concedes that she does not seek emotional damages based on negligence. However, Plaintiff contends she may still seek emotional distress damages based on the breach of contract action. “In general, damages are not recoverable for mental suffering resulting from breach of contract.” (Selden v. Dinner (1993) 17 Cal.App.4th 166, 172) Moreover, Plaintiff cannot allege emotional distress absent allegations of physical injury. (See Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012.) As the allegations of physical injury are speculative, emotional distress damages are not available under the facts alleged.

Accordingly, the motion to strike emotional distress damages is GRANTED with leave to amend.

Defendants move to strike allegations regarding Mr. Mister being Plaintiff’s service dog as irrelevant for purposes of loss of companionship and enjoyment. In opposition, Plaintiff points out that the allegation is not made for purposes of these damages.

Accordingly, the motion to strike allegations regarding Mr. Mister being Plaintiff’s service dog is DENIED.

Defendants argue that Plaintiff’s references to policies of the Veterinary Medical Board and AVMA standards should be sticken as immaterial. In opposition, Plaintiff argues these go towards showing the standard of care. Defendants cite to no authority for their assertion or provide any argument in reply.

Accordingly, the motion to strike allegations regarding the Veterinary Medical Board’s policies and AVMA standards is DENIED.

Defendants also move to strike the allegation that Plaintiff had to hire an independent contractor to assist with work so she could tend to Mr. Mister during his recovery. (FAC, ¶25.) Defendants argue that there is no authority for obtaining recovery of independent contractor fees for a veterinary malpractice claim with no citation. Plaintiff argues that it is material to damages to make the Plaintiff whole. At this time, the Court does not find the allegation immaterial.

Accordingly, the motion to strike allegations regarding hiring an independent contractor is DENIED.

Lastly, Defendants move to strike Plaintiff’s allegation that she “has become aware of other dogs who have been impacted by the neglect and lack of procedures and policies at VCA.” (FAC, ¶27.) Again, with Defendants cite to no authority that this allegation is immaterial. Without any relevant legal authority or cogent argument from Defendants, the Court DENIES the motion to strike this allegation.

Defendants’ motion to strike portions of the FAC is GRANTED as to the allegations of punitive damages and emotional distress damages.

Defendants’ motion to strike is DENIED as to the allegations pertaining to Mr. Mister being a service dog, AVMA standards and policies of the Veterinary Medical Board, Plaintiff hiring an independent contractor, and past neglect of VCA.

Hon. Daniel M. Crowley

Judge of the Superior Court